Clugh v. Manor

WELLS, Judge.

Initially we note that the order from which defendants have appealed does not finally determine plaintiff’s entitlement to compensation and is therefore interlocutory. There is no right of appeal from an interlocutory order of the Industrial Commission. See Fisher v. E.I. Du Pont De Nemours, 54 N.C. App. 176, 282 S.E.2d 548 (1981) and cases cited therein. Because we view the question presented appropriate for consideration on the merits, and because doing so will expedite the disposition of plaintiff’s claim on its merits, we exercise our discretion to treat defendants’ appeal as a petition for certiorari and allow it. Rule 21(a)(1) of the North Carolina Rules of Appellate Procedure.

Defendants assign error to the Commission’s order that this matter be set for hearing and conclusion that Deputy Commissioner Rush misapplied G.S. § 97-47. In setting this case for hearing on plaintiff’s entitlement to further compensation, the Commission entered the following and dispositive conclusions of law:

1. Though at its inception, plaintiff’s case was one for which compensation and medical bills were paid, subsequent to Deputy Commissioner Taylor’s award, plaintiff’s case became one in which “only medical or other treatment bills were paid.”

2. N.C.G.S. [§] 97-47 should be interpreted in the present tense rather than applying the statute to the case in its original stage, thereby allowing for a [§] 97-47 hearing. N.C.G.S. [§] 97-47.

N.C. Gen. Stat. § 97-47 (1985) provides: last payment of compensation pursuant to an award under this Article, except that in cases in which only medical or other treatment bills are paid, no such review shall be made after 12 months from the date of the last payment of bills for medical or other treatment, paid pursuant to this Article.

Upon its own motion or upon the application of any party in interest on the grounds of a change in condition, the Industrial Commission may review any award, and on such review may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in this Article, and shall immediately send to the parties a copy of the awardv No such review shall affect such award as regards any moneys paid but no such review shall be made after two years from the date of the

Defendants contend that the proper application of G.S. § 97-47 bars review of plaintiff’s original award because over two years lapsed between plaintiff’s final compensation payment in January 1986 and the filing of her second request for a change of condition hearing. Defendants further contend that plaintiff’s first request for change of hearing and Deputy Commissioner Taylor’s opinion and award filed 5 February 1987 and awarding medical treatment only, does not alter the outcome because the 5 February 1987 opinion is a mere continuation of the same case.

Since G.S. § 97-47 applies only whenever there has been a previous award of the Commission, Watkins v. Motor Lines, 279 N.C 132, 181 S.E.2d 588 (1971), an award pursuant to G.S. § 97-47 will always be a “mere continuation of the same case” as suggested by defendants. In effect, defendants contend that the time limitations set out in G.S. § 97-47 should always be measured from the original award. Defendants offer no authority to support this interpretation and we think such an interpretation is inconsistent with G.S. § 97-47’s recognition that a change in condition may require a modification of a previous award in workers’ compensation cases, either a previous award for compensation or a previous award for medical bills only. Defendants cite and rely on Shuler v. Talon Div. of Textron, 30 N.C. App. 570, 227 S.E.2d 627 (1976). We note that Shuler is resolved on the principle that plaintiff failed to show a change of condition and any expressions in Shuler regarding time limitations are dicta and not binding in this case.

We hold that the Full Commission correctly concluded that plaintiff timely filed her request for change of condition hearing and ordered this matter set for hearing.

Affirmed.

Judge WYNN concurs. Judge GREENE dissents.